1. BROWNFIELDS UPDATE
THE AMENDMENTS TO O. REG. 153
John Willms
Specialist in Environmental Law
Certified by the Law Society of Upper Canada
Willms & Shier Environmental Lawyers LLP
www.willmsshier.com

2. Outline
• Soil, ground water and
sediment standards
• Standards for Phase I and II
ESAs
• Soil Movement
• Regulatory and Civil Liability
• Transition

3. Standards – New Tables
• Old Table 6 is gone and is
replaced by
• Tables 6 and 7 – for shallow soil
sites
• Tables 8 and 9 – for sites near
water bodies
• Table 1 represents
background conditions and is
still used for sites that are
areas of natural significance

4. Standards Added and Revised
• New standards for four VOCs and
uranium
• “Science based” on the most
sensitive combination of
pathway and receptor – based
on 10-6 for human health
• A few e.g. Vinyl chloride are less
stringent
• For the contaminants that we
most frequently encounter,
between 1 to 3 orders more
stringent

5. Changed Standards
• BTEX, benzene – significantly
more stringent
• PHCs – numerical standards in
all tables
• For PHC, no evidence of free
product
• For potable ground water “no
indication of objectionable
petroleum hydrocarbon odour
and taste”

6. Risk Assessment
• New and more detailed rules for
traditional RA
• New type of RA added in attempt
to streamline review and
ameliorate concerns
• Modified generic uses “approved
model”, MOE template and risk
management measures approved
and published by MOE
• Practitioner concern – this does
not provide much relief without
risk management

7. Role of QP
• Less independence, more
work
• Detailed rules for Phase I and
II ESAs embedded in Reg. 153
• As of July 1 ?? there will be a
new MOE “approval” process
– acknowledge for filing

8. Phase I ESA Data
• All reasonable enquiries – all
sources of “reasonably
accessible information”
• Extensive lists of sources of
“records”
• Includes access to
information legislation (my
take - municipal, provincial)

9. Conceptual Site Model
• Information about Phase I
Study Area
• Property boundaries 250 m
from Phase I property
boundary or beyond if QP
determines
• Potentially contaminating
uses, water bodies,
underground services

10. Source: Ministry of Ontario, Brownfields Redevelopment Amendments to O. Reg. 153/04,
Brownfields Stakeholder Group Meeting, May 23, 2010

11. Potentially Contaminating Activities
• Assess all within or beyond
250 m
• List of 70 activities
encompasses most of the
usual suspects
• # 71 - Fill of unknown quality

12. Enhanced Phase I ESA
• Property had garage, dry
cleaning or “bulk liquid
dispensing”
• Permits and records, MSDS,
inventories of chemicals,
tanks, storage areas
• Waste management records
• Environmental audit reports

13. Phase II ESAs – Delineation
• How to draw the plume of
contamination
• Keep sampling until areas of
highest concentration found
• Edges of plume – vertical and
horizontal extent to the next
sampling location that is <
standard – no interpolation

14. Phase II ESAs – Averaging
• Compliance to be determined
at each sampling point
• Average where 2 or more
samples at same location and
depth (within 2 m radius)
• Composite samples not
allowed for VOC analysis

15. Phase II ESAs Confirmatory Sampling
• Two quarterly consecutive
ground water samples needed
where remediation done
• Four if remediation in situ

16. Phase II ESAs - Contaminants
• CSM – Phase I and incorporate
the results of the Phase II
assessment
• Soil vapour survey for volatile
contaminants including VOCs
• Measure and report on “free
product” or “free flowing
product”

17. Phase II ESAs - Hydrogeology
• Groundwater levels plus
temporal variations – monitor
or estimate
• Measure levels at every
sampling event
• Flow direction using 3 or more
monitoring wells
• Horizontal gradients

18. “Best By” Dates
• “Date of last work”
researching for Phase I and II
• < 18 months before RSC

19. Movement and Treatment of Soil
– Reporting Quantities
• New MOE interest and
emphasis on tracking
• QP must report on quantities
and quality of soil
• Removed or imported
• Including characteristics
(Phase I) of the source
property
• Remediated on and off-site

20. Rules for Importation
• Rules apply to RSC properties
ONLY
• General Rule - Table 1 soils
fine for importation to any site
including sites with RSC
∀ ∴ practice – import soil first,
then do Phase II

21. Importing Clean Soil
• Know your source of backfill and
bedding - no exemption for
material from aggregate
operation that has naturally
occurring exceedance
• Many aggregate operations
produce materials that exceed
the new standards, usually
metals, the exact contaminant
depends on where in Ontario

22. Regulatory and Civil Liability
• Civil – no civil liability
protection except for
municipalities
• Municipalities – no liability for
reliance on RSC by reason of
inaccuracy in RSC
• Regulatory – RSC provides
limited protection “reopeners”
but not in the event of off-site
migration

23. Transition
• Site Condition Standards –
July 1, 2011
• New rules for Phase I and II
ESAs – July 1, 2011 or earlier
if and when RSC approval
procedures proclaimed
• Ongoing risk assessment or
remediation? Submit notice
before January 1, 2011 and
stay under the old rules up to
January 1, 2013

24. Contact Information
John Willms
Phone: (416) 862-4821
jwillms@willmsshier.com
Willms & Shier Environmental Lawyers LLP
www.willmsshier.com